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2016 DIGILAW 565 (JHR)

Udai Pratap Singh v. State of Jharkhand

2016-04-05

PRAMATH PATNAIK

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JUDGMENT : Per Pramath Patnaik, J. The aforesaid writ application has been filed, inter alia, praying for quashing the Memo dated 16.12.2004, pertaining to the award of punishment i.e. only subsistence allowance during the period of suspension, stoppage of one increment with cumulative effect. 2. The facts, in brief, is that the petitioner while posted as In-charge Headmaster in the Middle School, Pindarcom, Balumath in the district of Latehar was put under suspension on 02nd September, 1995 for non-joining at the place of transfer vide Annexure-1 to the writ application. By virtue of the impugned order dated 16.12.2004, vide Annexure-2, the petitioner has been allowed only the subsistence allowance during the period of suspension and the punishment of stoppage of one increment with cumulative effect has been imposed. Thereafter, the petitioner submitted representation explaining the reasons for not joining the place of transfer and requested for payment of the balance amount of subsistence allowance vide Annexure-3. Again on 29.06.2006, the petitioner has requested for payment of arrears of subsistence allowance from the date of suspension till the date of revocation of the order of suspension. Thereafter, vide Annexure-5 to the writ application, the petitioner has been advised to file departmental appeal before the Divisional Commissioner. Thereafter, the petitioner preferred Departmental Appeal No. 3 of 2008 in the Court of the Commissioner, Palamau for redressal of his grievances vide Annexure-6 to the writ application. 3. Being aggrieved by the impugned order under Annexure-2 and inaction on the part of the respondents in not disposing of departmental appeal (Annexure-6) the petitioner left with no other alternative, efficacious and speedy remedy has invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India for redressal of his grievances. 4. Mr. Anil Kumar Sinha, learned senior counsel for the petitioner has strenuously urged that the impugned order of punishment has been passed in gross violation of the cardinal principles of natural justice because of the fact that the chargesheet as well as the copy of the enquiry report has never been served upon the petitioner, which has grossly prejudiced the petitioner thereby vitiated the outcome of the proceedings. The learned senior counsel further submits that the entire proceeding has been conducted in a very perfunctory manner without affording any opportunity of being heard to the petitioner that too in an ex parte manner and thereby the whole proceeding has been vitiated. Learned senior counsel has further submitted that in the departmental appeal, the points regarding ex parte proceedings, non-compliance to the second show cause notice and non-supply of the enquiry report, have been raised but the same fell on the deaf ears. Learned senior counsel further submits that the impugned order (Annexure-2) has been passed at the behest of the Deputy Commissioner, which is a non-speaking and non-reasoned order, which cannot be sustained in the eye of law. Learned senior counsel further submits that the impugned order of punishment is highly disproportionate and non-commensurate to the gravity of the charges and on that ground, the impugned order dated 16.12.2004 is not legally sustainable. 5. Per contra, a counter affidavit has been filed on behalf of the respondent no. 4, controverting the averments made in the writ application. 6. It has been submitted in the counter affidavit that the petitioner has been informed to participate in departmental proceeding but he failed to appear in the same proceeding. He avoided to receive the notice for the reason best known to him, which is evident from letter no. 2721 dated 16.08.1987. The petitioner has been provided second show cause in the enquiry report but he avoided to receive the same. It has further been submitted that the petitioner’s representation was not found satisfactory, the entire amount of other dues have been paid except the order impugned. It has further been submitted that the enquiry report is in accordance with law and rule. Issuance of second show cause notice is evident from Annexure-A to the counter affidavit. 7. Mr. Jalisur Rahman, learned J.C. to G.P. III appearing for the respondent-State has assiduously argued that on perusal of Annexure-A and B to the counter affidavit, it would be crystal clear that the second show cause notice report and the postal acknowledgment regarding notice to the petitioner goes to show that adequate opportunity have been given to the petitioner but due to deliberate non-appearance on the part of the petitioner, impugned order of punishment has been passed. 8. Mr. 8. Mr. Anil Kumar Sinha, learned senior counsel appearing for the petitioner, during the course of hearing has referred to the rejoinder to the counter affidavit, wherein, it has been submitted that Annexure-B at page 18 of the counter affidavit, states that registered post sent to the petitioner was refused by the petitioner and from bare perusal of Annexure-B, page 19 to the counter affidavit, it transpires that the postman has made an endorsement that since he has failed to contact the addressee, hence, registered post is being duly returned to its sender. In the light of the aforesaid, it is stated that refusal of a registered post in any way would not mean that the postmaster had not met the addressee. Thus the two comments i.e. refused and failure to meet the addressee are itself contradictory to each other. It can be concluded that Annexure-B is a manufactured document and the same has been manufactured only to save the skin of the answering respondent that the enquiry report/notice etc. of the said departmental proceeding was served upon the petitioner. Learned senior counsel during course of hearing has referred to the judgment of the Hon’ble Apex Court reported in 1991 Supp (1) SCC 504, Kulwant Singh Gill-versus-State of Punjab wherein, the Hon’ble Supreme Court has held that stoppage of increment with cumulative effect is a major punishment. 9. After hearing the learned counsel for the respective parties at length and on perusal of the records, I am of the considered view that the petitioner has been able to make out a case for interference due to the following facts : - (i) On perusal of the impugned order, it appears that the impugned order of punishment has been passed without any reference to the enquiry report. The assertion of the petitioner in the writ petition that the enquiry report has not been served upon the petitioner, has not been controverted by any cogent explanation, but in a very peculiar and evasive manner, the reply has been made in the counter affidavit that the petitioner refused to accept the enquiry report. Be that as it may, the impugned order of punishment is not supported by any cogent reasons, therefore, the same is not legally sustainable. Be that as it may, the impugned order of punishment is not supported by any cogent reasons, therefore, the same is not legally sustainable. (ii) The impugned order of punishment vide Annexure-2 to the writ application contains two parts, the first part pertains to payment only of subsistence allowance and the second part relates to stoppage of increment with cumulative effect, which is a major punishment. When the major punishment has been inflicted upon the petitioner, the cardinal principles of natural justice ought to have been followed. (iii) It appears from the initiation of the very proceedings till its culmination, that there has been gross infirmities in the procedure, which has ultimately vitiated the entire proceedings resulting in infliction of punishment, therefore, by no stretch of imagination, the impugned order can be countenanced, when the same is fraught with serious infirmities. Moreover, Rule 97 of the Jharkhand Service Code, 2001 is applicable in this case, which envisages as under : - “97.(1) When a Government servant who has been dismissed, removed, or suspended is reinstated, the authority competent to order the reinstatement shall consider and make specific order- (a) regarding the pay and allowance to be paid to the Government servant for the period of his absence from duty, and (b) whether or not the said period shall be treated as a period spent on duty. [(2) Where the authority mentioned is sub-rule (1), is of the opinion that the Government servant has been fully exonerated, or in the case of suspension, that it was wholly unjustified, the Government servant shall be given full pay and allowance to which he would have been entitled, had he not been dismissed, removed or suspended as the case may be. (3) In other cases, the Government servant shall be given such proportion of such pay and allowance as such competent authority may prescribe: Provided that the payment of allowance under clause (2) or clause (3) shall be subject to all other conditions under which such allowance are admissible. (4) In a case falling under clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes. (4) In a case falling under clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes. [(5) In a case falling under clause (3) the period of absence from duty shall not be treated as a period spent on duty, unless such competent authority specifically directs that it shall be so treated for any specified purpose: Provided that if the Government servant so desires such authority may direct that the period of absence from duty shall be converted into leave of any kind due and admissible to the Government servant.]” (iv) No order has been passed as to how to treat the period of suspension, therefore, in absence of any order, as passed under the aforesaid Section, it would be difficult to fathom, how to treat the period of suspension. 10. In view of the aforesaid facts and the reasons stated in the foregoing paragraphs, the impugned order of punishment, dated 16.12.2004 is quashed and set aside and the matter is remitted to the respondents to pass order afresh in accordance with law within a period of 12 weeks from the date of receipt/communication of order of this Court. 11. With the aforesaid direction, the writ petition stands disposed of. Petition disposed of.